Martin

I concur with the majority in affirming Martin’s convictions of conspiracy to commit extortion, conspiracy to commit assault with a deadly weapon and simple assault. However, I believe instructional error requires reversal of Martin’s conviction of second degree murder. Martin was neither charged with nor tried for conspiracy to commit murder, reflecting the district attorney’s assessment before trial that there was insufficient evidence to establish an agreement between Martin and Powell that Powell was to murder Crake. The deputy district attorney who tried the case did so consistently, but incorrectly, with these pleadings on the theory that the unintended killing was the objectively foreseeable result of the charged conspiracies, neither of which can legally support a finding of second degree murder.

Jury instructions may not be considered in the abstract. They must be evaluated in the context of the actual trial, considering the theories advanced and the evidence presented. In the case before us the jury was directed to limit its consideration of Martin’s guilt on the murder count to “the con *171 spiracy theory if at all.” (See ante, p. 158, italics supplied.) In effect,…

A jury found Herman G. Martin guilty of conspiracy to commit extortion (Pen. Code, §§ 182, subd. 1, 518), conspiracy to commit assault with a deadly weapon (§§ 245, subd. (a), 182, subd. 1), murder (§ 187), and simple assault (§ 240). The jury also found Martin was armed with a firearm during the commission of the conspiracies and murder (§ 12022, subd. (a)). The jury found the murder to be second degree. Martin was sentenced to 15 years to life for murder plus a 1-year enhancement. Sentencing for the conspiracies was stayed (§ 654). Martin was sentenced to a concurrent six-month custody in county jail for assault with a deadly weapon. The issues on appeal concern jury instructions, the trial court’s discretion in permitting testimony and examination of witnesses, sufficiency of the evidence, a pretrial motion to dismiss, and prosecutorial misconduct. The appeal is accompanied by and has been consolidated with a petition for habeas corpus based on the prosecution’s failure to disclose inducements for witness’ testimony and the prosecution’s suppression of evidence by intimidating witnesses.

*156 Facts

La Jolla attorney Richard Crake was murdered by Andrew James Powell…

A jury found Herman G. Martin guilty of conspiracy to commit extortion (Pen. Code, §§ 182, subd. 1, 518), conspiracy to commit assault with a deadly weapon (§§ 245, subd. (a), 182, subd. 1), murder (§ 187), and simple assault (§ 240). The jury also found Martin was armed with a firearm during the commission of the conspiracies and murder (§ 12022, subd. (a)). The jury found the murder to be second degree. Martin was sentenced to 15 years to life for murder plus a 1-year enhancement. Sentencing for the conspiracies was stayed (§ 654). Martin was sentenced to a concurrent six-month custody in county jail for assault with a deadly weapon. The issues on appeal concern jury instructions, the trial court's discretion in permitting testimony and examination of witnesses, sufficiency of the evidence, a pretrial motion to dismiss, and prosecutorial misconduct. The appeal is accompanied by and has been consolidated with a petition for habeas corpus based on the prosecution's failure to disclose inducements for witness' testimony and the prosecution's suppression of evidence by intimidating witnesses.

La Jolla attorney Richard Crake was murdered by Andrew James…